R. v. Morgan, 2013 ONSC 1522
[51] In R. v. Gagnon, supra, Hamilton J.A., outlined the considerations that can be taken into account in determining whether the items were “recently” stolen:
12 The requirement that the Crown prove that the goods were recently stolen relates to when the underlying offence occurred. Any number of factors can be considered in determining whether a possession is recent including the nature of the object, its rareness, the readiness in which it can, and is likely to, pass to another and the ease of identification. See Saieva v. The Queen, 1982 CanLII 51 (SCC), [1982] 1 S.C.R. 897.
13 When deciding whether to infer only possession of the stolen goods or to infer the underlying offence, the trier of fact must consider all the circumstances. See Kowlyk and R. v. Abernathy (J.C.) 2002 BCCA 8, 161 B.C.A.C. 247. Common sense factors to be considered include how close in time to the theft or robbery are the goods in possession of the accused and the nature of the stolen goods. Obviously, the closer in time possession is to the underlying offence, the more likely it is that the trier of fact will draw the inference of guilt on the underlying offence. However, a longer period of time does not prevent the inference. This is evident in Kowlyk where the break-ins occurred on June 1, 6, and 8 and on July 11, but it was not until August 27th that the goods were found in the possession of the accused. The Supreme Court upheld the convictions on the underlying offences.
14 Ultimately, the trier of fact, upon a consideration of all the circumstances surrounding the unexplained possession of recently stolen goods, will decide which inference is to be drawn. That is a question of fact. As such, deference is owed to such finding. See, for example, H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, and R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621.
[52] In R. v. Bakos, 2008 ONCA 712, [2008] O.J. No. 4067, the Court of Appeal accepted that four months between theft and possession could constitute recent possession:
21 In support of their argument, the appellants rely on Saieva v. The Queen (1982), 1982 CanLII 51 (SCC), 68 C.C.C. (2d) 97, in which the Supreme Court of Canada considered "recency" on the basis of the relevant factors, including the rareness of the object, the readiness with which it is likely to pass from hand to hand, its transferability and its ease of identification. However, Saieva involved different circumstances and raised different issues than those present in this case. Moreover, the theft in Saieva could have occurred 50 to 55 weeks before the possession. Also in Saieva, there was no evidence about the date of theft and, in order to establish a date, it was necessary to consider "intricate facts" about how the stolen property was used before the theft.
22 In this case, there was no dispute about when and where the theft occurred. Here, the possession of the stolen components by the appellants was alleged to be within four and a half months of the theft. The date when the components came into Mr. Stewart's possession was also clear. Indeed, the gap between the theft and the appellants' possession is shorter than the four plus months described because the appellants must have had the components at an earlier time in order to incorporate them into the Stewart motorcycle and advertise it for sale.
23 In any event, while Saieva required the trial judge to provide the jury with the criteria for determining "recency", in my view those criteria were adequately delivered to the jury in this case when the charge is considered as a whole. The jury had extensive evidence about the Chinery sale, the Dennis theft, the amalgamation of the two motorcycles into the Stewart motorcycle, the possible use made of the Dennis motorcycle in the summer of 2004 and the appellants' possession of the components for a period of time before the sale to Stewart.
24 The nature of the issues in this trial and the components of the offences were clear to the jury. The factual issues and the applicable law were reviewed in detail in the trial judge's charge. This was not a complicated trial requiring a detailed explanation of "recent": see also Watt at pp. 649-58. Further, in my view, the Crown was not compelled, as suggested in oral argument, to call expert evidence, if such evidence was available, on the transferability in practice of stolen motorcycle components when taken by a dealer for inclusion in a rebuilt motorcycle. I would not give effect to this ground of appeal.
[53] Accordingly, in order to determine recency, the court is entitled to consider a variety of factors including, but not limited to:
(1) Rareness and nature of the object,
(2) Readiness with which it is likely to pass from hand to hand,
(3) Its transferability,
(4) Its ease of identification.
[54] The authors of McWilliams, in Canadian Criminal Evidence, (3rd edition), at pp. 5-14 refer to the Cockins Case (1836), 168 E.R. 1139, where the trial judge instructed the jury, with respect to a charge of theft of socks found in the accused’s possession twenty days after they were missed, that:
If I was to lose my watch and in a few minutes it was to be found on the person one of you, it would afford the strongest ground for presuming that you had stolen it; but if a month hence it were to be found in your possession, the presumption of your having stolen it would be greatly weakened because stolen property passes through many hands.
[55] Further, the McWilliams’ authors write that the “strength of the presumption depends on how recent the possession is, that is, in proportion to the shortness of the interval since the theft. It also depends on the nature of the possession, whether it is open or avowed or secret and concealed and the nature of the account given of it: R. v. Exall [citation omitted]”.
[56] Recency has been held to be established in the following circumstances: (1) money stolen from a bank robbery four hours earlier (R. v. Dionne [2005] S.C.J. No. 27); (2) guns stolen 17 days earlier (R. v. Choquette [2007] O. J. No. 3137 (C.A.)); (3) truck with significant alterations stolen 56 days earlier (R. v. MacNair [2006] O.J. No. 2430 (C.A.)); (4) bank card stolen 72 hours earlier (R. v. Barrett [2011] (S.C.J.); horse stolen 3 days earlier; Clement’s case (1830), 168 E.R. 980 – see R. v. Kowlyk).
[57] In dealing with a stolen radio, the Court of Appeal indicated in R. v. Cousineau, 1982 CanLII 3720 (ON CA), [1982] O.J. No. 150 (C.A.), at para. 14:
…Although the date of the theft is unknown, the interval between the theft and the sale was less than one month. While it is true that the presumption of knowledge from recent possession does not apply where common, easily transferable articles are held for a long period, I know of no authority which would compel me to find that the presumption could not apply where the period is less than one month. The decisions on this issue show that the operation of the presumption turns on the facts of each case.
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